232 F.3d 836 (11th Cir. 2000), 99-12951, Rice-Lamar v City of Fort Lauderdale

Docket Nº:99-12951.
Citation:232 F.3d 836
Party Name:Deborah RICE-LAMAR, Plaintiff-Appellant, v. CITY OF FORT LAUDERDALE, FLORIDA, a municipality, George Hanbury, individually, Pete Witschen, Asst. City Attorney, individually, Bruce Larkin, individually, John Panoch, individually, Defendants-Appellees.
Case Date:November 08, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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232 F.3d 836 (11th Cir. 2000)

Deborah RICE-LAMAR, Plaintiff-Appellant,

v.

CITY OF FORT LAUDERDALE, FLORIDA, a municipality, George Hanbury, individually, Pete Witschen, Asst. City Attorney, individually, Bruce Larkin, individually, John Panoch, individually, Defendants-Appellees.

No. 99-12951.

United States Court of Appeals, Eleventh Circuit

November 8, 2000

November 20, 2000

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Appeal from the United States District Court for the Southern District of Florida.(No. 97-07007-CV-WPD), William P. Dimitrouleas, Judge.

Before TJOFLAT, MARCUS and CUDAHY[*], Circuit Judges.

TJOFLAT, Circuit Judge:

I.

A.

The City Manager's Office (the "CMO") in the City of Ft. Lauderdale, Florida, oversees a large and complex bureaucratic structure. Under the CMO, which includes not only the City Manager, himself, but also Assistant City Managers and various other personnel, are seven City Departments: Police, Public Services, Fire Rescue and Building, Administrative Services, Finance, Parks and Recreation, and Planning and Economic Development. Each Department is comprised of several Divisions. One such Division within each of the Departments is the Personnel Division.

The City Manager serves at the pleasure of an elected City Commission. In order to ensure racial, ethnic, and gender diversity in the City's hiring practices, the Ft. Lauderdale City Commission requested that the CMO prepare annual reports detailing the City's progress in hiring and retaining minority employees. The CMO assigned this task to the Affirmative Action Specialist, who reports to the Director of Personnel in the Administrative Services Department.

On June 20, 1988, Deborah Rice-Lamar, an African-American female, was hired to be the City's Affirmative Action Specialist. Rice-Lamar's job description stated that one of her principal tasks was to "advise[ ] departmental and personnel officials as well as the City Manager on potential EEO liabilities and on strategies for achieving ... long term [affirmative action] goals."1 Though her "work [was to be] performed with considerable independent judgment, discretion and initiative," the job description made clear that it was also to be "reviewed by an administrative superior through conferences, periodic reports, and observation of results achieved." Rice-Lamar presented the 1996 Affirmative Action Report at a Department meeting on June 19, 1996. Entitled "Economic

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Integration: Affirmative Action for the New Millennium," the report included a dramatic personal commentary by Rice-Lamar, which stated:

[W]e are still a City plagued with racism, glass ceilings for women and brick walls for people of color, a tolerance for perceptions of unfairness and a proverbial silence about it all. We make plans for valuing and managing diversity initiatives within the City which should create an environment where differences are valued as an advantage[,] not just tolerated. However, differences must first be acknowledged before either tolerated or valued. Recommendations on the City's diversity initiative are forthcoming; however, I will take this opportunity to foretell that they will acknowledge our need to address some basic problem of "ism" while moving toward an environment which values diversity and manages diversity for the betterment of all.

Also included were statistical graphs indicating the number of African-American, Hispanic, and female City employees in management and professional positions.

George Hanbury, the City Manager, Pete Witschen, an Assistant City Manager, Bruce Larkin, the Director of the Administrative Services Department, and John Panoch, the Director of the Personnel Division of the Administrative Services Department, all expressed serious reservations about the content of the report, and requested that Rice-Lamar make various substantive changes before the report was delivered to the City Commission. In particular, Rice-Lamar's superiors directed her to remove the personal commentary, and to draft a report that focused on the statistical data collected on minority and female representation in the City workforce. Rice-Lamar refused to alter the report substantially. On July 22, 1996, she left a revised copy of the report in Larkin's and Panoch's respective offices, with a message that it was ready for printing and distribution. The report still contained much of the personal commentary that her superiors had directed her to remove.2

On July 26, Larkin met with Rice-Lamar and offered her the opportunity to resign. She refused, stating in a letter to Larkin that

[t]he Affirmative Action Report ... honestly and objectively outlines racial problems and tensions in the City.

Apparently, your concern over public image have [sic] led you to suppress the publication of my report and request my resignation.

On July 29, without Larkin's review or approval, Rice-Lamar distributed the report to Hanbury, and all but one of the Department heads. On August 12, Rice-Lamar was notified by memorandum from Panoch of possible disciplinary action against her, based, in part, on the fact that "numerous deadlines [had been] missed and instructions [were] not followed" with regard to the "Affirmative Action presentation and report." After affording Rice-Lamar an opportunity to be heard, Larkin recommended to the City Manager that she be discharged. The City Manager accepted the recommendation and discharged her effective October 21, 1996.

B.

Rice-Lamar brought this suit against the City of Ft. Lauderdale, Hanbury, Witschen,

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Larkin, and Panoch in the United States District Court for the Southern District of Florida. In a twelve-count complaint,3 she sought money damages and, alternatively, reinstatement and back pay, against the City and the individual defendants for discriminating against her on account of her race and sex, in violation of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1994),4 and 42 U.S.C. § 1981 (1994),5 and for infringing her First Amendment right to free speech.6 As a vehicle for recovery, Rice-Lamar invoked 42 U.S.C. § 1983. (1994)7 Finally, she claimed that the individual defendants had conspired to discriminate against her on account of her race and sex in violation of 42 U.S.C. § 1985(3) (1994).8

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In their answers to Rice-Lamar's complaint, the defendants denied liability and the individual defendants claimed qualified immunity from suit.

Following discovery, the defendants moved for summary judgment. The district court granted their motions, concluding that Rice-Lamar failed to make out a case under any of her theories of liability. The court also concluded that the individual defendants were immune from suit under the doctrine of qualified immunity. We now affirm the court's judgment. We do so on the basis that the record before the district court was insufficient as a matter of law to establish any of Rice- Lamar's claims for relief. (We therefore do not reach the question whether any individual defendant is entitled to qualified immunity.)

II.

We review de novo orders granting a motion for summary judgment. Warren v. Crawford, 927 F.2d 559, 561 (11th Cir.1991). "The district court's conclusion[s] of law [are] subject to complete and independent review by this court." In re Sure-Snap Corp., 983 F.2d 1015, 1017 (11th Cir.1993).

A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When the non-moving party bears the burden of proof on an issue at trial, the moving party need not "support its motion with affidavits or other similar material negating the opponent's claim," id. at 323, 106 S.Ct. at 2553, in order to discharge this initial responsibility. Instead, the moving party simply may " 'show[ ]'-that is, point[ ] out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. at 2554 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)).

In response to a properly supported motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the non-moving party fails to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," then the court must enter summary judgment for the moving party. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In determining whether genuine issues of material fact exist, we resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

III.

We first address Rice-Lamar's First Amendment free speech claim. Second, we address her claim that she was discriminated against on the basis of her race and sex.

A.

It is well established that a state may not discharge a public employee in retaliation for public speech. Rankin v. McPherson, 483 U.S. 378, 107 S.Ct.

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2891, 97 L.Ed.2d 315 (1987). This circuit employs a four-part test to determine whether a state (or, as in this case, a city) has done so.

First, a court must determine whether the employee's speech may be fairly characterized as constituting speech on a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708...

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